TG & Y Stores Co. v. Higdon

• Decision Date: 24 August 1983
• Court: Alabama Court of Civil Appeals
• Parties: TG & Y STORES COMPANY, a corporation v. Donna HIGDON. Civ. 3627.

Page 1035

437 So.2d 1035

TG & Y STORES COMPANY, a corporation v. Donna HIGDON.

Civ. 3627.

Court of Civil Appeals of Alabama.

Aug. 24, 1983.

Benjamin R. Rice of Williams, Spurrier, Rice, Henderson & Grace, Huntsville, for appellant.

Albert P. Brewer of Brewer, Lentz, Nelson & Whitmire, Decatur, for appellee.

HOLMES, Judge.

This is a workmen's compensation case.

The trial court in pertinent part awarded the employee temporary total disability for a stated period of time. The employee was also awarded certain medical expenses.

The employer appeals and contends that the trial court erred in failing to deduct certain times from the compensation award when wages were earned during the period of temporary total disability. The employer also contends that the trial court erred in awarding medical expenses in that there was no evidence that the medical expenses were reasonable.

At the outset we note that the standard of review in workmen's compensation cases is whether there is any legal evidence to support the trial court's findings. Legg v. Americold Compressor Co., 336 So.2d 1121 (Ala.Civ.App.1976). This court can consider neither the weight of the evidence nor the propriety of the trial court's finding of fact. Our review is limited to a determination of whether there is any evidence to support the trial court's findings. Tidwell Industries, Inc. v. Kennedy, 410 So.2d 109 (Ala.Civ.App.1982).

In the instant appeal the record reveals the following:

On February 17, 1981, the employee injured her back in the course of her employment at TG & Y Stores Company. The employee sought medical attention and was eventually hospitalized for a time. In March, 1981, the employee returned to work at TG & Y on a part time basis. She continued to experience considerable pain and discomfort and as a consequence, worked only for approximately two weeks. Thereafter, the employee received additional medical treatment. The orthopedic specialist treating the employee released her to return to work sometime in May, 1981.

From May until September, 1981, the employee worked at TG & Y, at first part time, then eventually on a regular basis comparable to before her injury. TG & Y terminated her employment because she could not be depended on to work consistently, and she started work in October, 1981, as a day manager at a fast food drive-in. The employee worked full time, nine to five, until February, 1982, when the drive-in closed for business.

After an ore tenus hearing, the trial court found that the employee suffered a temporary total disability and awarded compensation benefits from February 17, 1981 to May 17, 1983. The trial court also awarded medical expenses incurred by the employee.

On appeal, as indicated, the employer contends that the trial court should have allowed it a credit for the periods in which wages were earned by the employee during the time of temporary total disability. In other words, the employer contends that periods of time, i.e., wages, during which the employee was employed after her accident should be deducted from the amount of temporary total disability determined by the trial court. After a thorough analysis, this court is convinced that the employer is partially correct.

The law is clear that there can be times during the recuperative period when an injured employee can be employed without terminating the period during which an award of total temporary disability may be made. Defense Ordinance Corp. v. England, 52 Ala.App. 565, 295 So.2d 419 (1974). That is not at issue here. The employer does not dispute this general principle; however, it contends that any time at work with wages earned during the recovery or healing period should be deducted from the award of temporary total disability. Put another way, the employer should be allowed a credit. This court finds that this is appropriate under certain circumstances.

Temporary total disability is ordinarily established by direct evidence of wage loss. Speigner v. McGhee, 55 Ala.App. 384, 316 So.2d 215, cert. denied, 294 Ala. 769, 316 So.2d 221 (1975). This court has held that temporary total disability applies to the healing period during which the employee is recovering and unable to work. In the usual situation there is a period of healing and complete wage loss. This is followed by a recovery or stabilization of the injury. Temporary total disability may occur at different times until maximum medical recovery can be ascertained. Speigner v. McGhee, 55 Ala.App. 384, 316 So.2d 215 (1975); 2 Larson, Workmen's Compensation Law § 57.10.

It is clear that an employee can return to work before maximum medical recovery is attained without having temporary total disability benefits terminated. Case law in this state, however, indicates that periods of full time employment during the recovery period can be deducted from the compensation award for temporary total disability. See Speigner v. McGhee, 55 Ala.App. 384, 316 So.2d 215 (1975). However, that does not entirely resolve the issue at bar.

In addressing the question of whether two different periods of employment terminated the recovery period of a claimant, this court held that the period of recovery did not end and the period of temporary total disability would run from a certain date "minus" the two periods of employment, i.e., a credit. Speigner v. McGhee, 55 Ala.App. 384, 316 So.2d 215 (1975). There also exists a line of cases from other states that hold it is error to award temporary total disability for a period in which the employee worked full time. See Fort Pierce Utilities v. Blotney, 396 So.2d 852 (Fla.App.1981); 2 Larson, Workmen's Compensation Law § 57.12 (July, 1983, Supp.)

However, there is also authority for the position that employment alone does not necessarily "suspend" the period of temporary total disability. See 2 Larson, Workmen's Compensation Law § 57.10-12.

Where an employee has not reached maximum medical recovery, works only part time and his disability prevents full time employment, this court would be hard pressed to find...